N. Thiagarajan vs Neykarapatti Town Panchayat

Natarajan, J.—Having failed before the trial court to get his complaint quashed on a preliminary objection, the petitioner (accused) has come forward with this revision to this Court. The respondent Panchayat represented by its Executive Officer, filed a complaint against the petitioner for non-payment of house tax, water tax, etc, amounting to a sum of Rs 34,262.45 for the years 1980-81 and 1981-82. The petitioner was the lessee of a spinning mill and it was at that time the demands for house tax and water tax were raised. The demands were originally made by means of demand notices, dated 20th July. 1981. As the petitioner did not pay the tax amounts, a prosecution notice was issued on (sic) April, 1982, and thereafter the complaint was filed. The petitioner raised a preliminary objection stating that limitation would run from the date of the earlier notices issued on 20th July, 1981 and since the complaint had not been filed within a period of three months from that dote, the prosecution was barred by time. In the support of his contention, he placed reliance on S. 166 of the Madras Panchayats Act which reads of follows-

Persons empowered to prosecute : Save as otherwise expressly provided in this Act, no person shall be tried for any offence against this Act or any rule or by-law made thereunder unless complaint is made within three months of the commission of the offence by the police, the executive authority, the Panchayat union council, the Commissioner or a person expressly, authorised in this behalf by the Panchayat, Panchayat Union Council, executive authority or Commissioner, but nothing herein shall affect the provisions of the Code of Criminal Procedure. 1898 (Central Act V of 1898) in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion.

(Proviso omitted as it relates to continuing offences).

The learned Magistrate has rejected the contention stating that the period of limitation should be computed only from the date of issue of the prosecution notice and since the date of issue is 24th April, 1982, the complaint filed on 1st June, 1982 was well within time. It is the correctness of this order which is challenged in this revision.

Mr. Arunachalam, learned counsel for the petitioner, contends that the demand notices issued on 20th July, 1981, are themselves final notices and since it is mentioned therein that if within a period of 15 days the demands raised are not met, the properties would be distrained, it should be held that the period of limitation of three months mentioned in S. 166 of the Panchayats Act should be construed from the date of issue of the demand notices and since the complaint had been filed only on 1st June, 1982, the court below should have held that the complaint was barred by time. He further argued that the Panchayat is not entitled to issue a prosecution notice afresh on 24th April, 1982, and as such the Panchayat cannot try to seek a fresh period of limitation of three months from the date of issue of the prosecution notice.

The relevant provisions of the Act and the rules framed thereunder which require scrutiny are as under: S.166, which has already been extracted, refers to prosecutions. It is no doubt true that in this section, it is stated that the complaint should be made within three months of the commission of the offense. But, what is of significance is that the period of limitation is subject to other provisions contained in the Act. This is made clear by the opening words of the section, viz., "Save as otherwise expressly provided in this Act". Bearing this in mind, if we look at S.165 of the Act, we will find that a limitation period of six years is given for taking out distraint proceedings or for filing a suit or for launching a prosecution. The Section reads as follows-

Limitation for recovery of dues: No distraint shall be made, DO suit shall be instituted a ad no prosecution shall be commenced in respect of any tax or other sum due to a Panchayat or Panchayat Union Council under this Act or any rule, by-law, regulation or order made under it after the expiration of a period of six years from the date on which distraint might first have been made, a suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such tax or sum.

On a proper reading of Ss.165 and 166 of the Act, it is seen that S.166 is subject to the provisions contained in S.165. Such being the case it goes without saying that the three months'' limitation period mentioned in S.166 will not apply to taking out distraint proceedings or the filing of a suit or the launching Of a prosecution in respect of any tax or other sum due to a Panchayat or Panchayat Union Council.

The notices issued on 20th July, 1981 are merely demand notices. They have been issued during the latter half of the year 1981-82. The demand raised is for the period ending upto 31st March, 1982. Such being the case, the prosecution could not have been launched for non-payment of tax even before the end of the year for which the tax demand was raised. As regards the failure of the Panchayat to initiate distraint proceedings against the petitioner, the reason is not far off to see. The petitioner was only a lessee of the mill premises. Hence the Panchayat could not take out distraint proceedings against the movable articles in the mill or its machinery, because they belong to the lessor. R.26 of the Rules framed under the Act refers to distraint and sale of movable property. Sub-R.(2) of R.26 reads as follows-

If for any reason the distraint or a sufficient distraint of the defaulter''s property is impracticable, the executive authority may prosecute the defaulter before a Magistrate.

In view of the fact that the petitioner is only a lessee, the Panchayat could not distrain and effect sale of the movable property of the defaulter and hence it had to resort to prosecution proceedings.

The plea of the petitioner that the prosecution should have been launched within a period of three months from the date of issue of the demand notice is obviously a misconceived one. The notice of demand could not have been followed up by distraint proceedings because of the fact that the petitioner was only a lessee of the mill. As such, the Panchayat had to issue a prosecution notice and thereafter file a complaint against the petitioner. Such being the case, the notice of prosecution issued on 24th April, 1982 is perfectly valid in law and the period of limitation, if any, will begin to run only from that date (even if S.163 is left out of consideration). Since the complaint has been filed on 1st June, 1982, itself, it goes without saying that the complaint is not barred by limitation. Hence the court below was perfectly correct in overruling the preliminary objection raised by the petitioner. The result of this fin ling is that the revision has to fail and it will accordingly stand dismissed.